MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           01 OCTOBER 2002                   
	DOCKET NUMBER:   AR2002072968

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.

He states that he had no problem with his foot when he joined the Army.  His foot started swelling when he wore boots.  He could not walk at times because of the pain and swelling.  He states that he should receive some compensation for his injury because his foot was never the same after his discharge. 

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for four years on 24 July 1990 and was assigned to Fort Jackson, South Carolina for training.  Prior to his entry on active duty he underwent a physical examination.  The 14 October 1989 report of that examination shows that the applicant was physically fit for enlistment.  It also showed that he had flat feet.

On 11 August 1990 the applicant was treated at the podiatry clinic at the Fort Jackson medical activity because of a painful toe on his left foot.  His condition was diagnosed as a mallet toe deformity to the second toe of his left foot.

A 13 August 1990 Entrance Physical Standards Board (EPSBD) Proceedings found that the applicant’s left second toe was swollen.  He had a contracture of that toe at distal interphalangeal joint left.  It was a fixed deformity that could not be reduced with passive pressure.  His condition was diagnosed as a mallet toe of the second toe of his left foot.  The board recommended that he be separated from the Army for failure to meet medical procurement standards.  His condition existed prior to his service (EPTS) and was not permanently service aggravated. He did not meet the medical standards for retention in the Army.  The applicant’s physical profile serial was 1 1 3 1 1 1.  The examining physicians indicated that surgery could help his condition.  The medical authority approved the findings of the board.  On 17 August 1990 the applicant stated that he concurred with the proceedings and that he requested to be discharged from the Army without delay.  The applicant’s commanding officer recommended that the applicant be discharged.  On 27 August 1990 the separation authority directed that he be discharged.  

On 7 September 1990 the applicant stated that he did not desire a separation medical examination.  He was discharged on 7 September 1990 under the provisions of Army Regulation 635-200, paragraph 5-11, because he did not meet procurement medical fitness standards.  He had 1 month and 14 days of service.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical
standards or who became not qualified prior to entry.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entry on active duty, which would have permanently or temporarily disqualified him for entry into the military service had it been detected at that time.  The character of service for a soldier separated under this paragraph will normally be honorable, or an uncharacterized description of service if in entry level status.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his condition was incurred while he was in the Army or that it was permanently aggravated because of his military service, and as such there is no basis to award him compensation.  There is no basis to correct his record to show physical disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 September 1990, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 7 December 1993.

The application is dated 21 April 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __MKP __  __AAO __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002072968	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021001	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.